Civil Service recently denied an appeal of a Boston Police officer who was terminated for failing a drug test for the second time in her career.
The Appellant, Deborah Anderson, a tenured civil service employee of the Department, was employed as a Police Officer since November 24, 1986. On November 5, 1996, the Appellant submitted to toxicology testing which revealed positive levels of cocaine and marijuana. The positive drug test was a violation of Department Rule 111.
The Appellant was offered an opportunity to avoid termination by entering into a Settlement Agreement with the Department. On November 18, 1996, the Appellant signed a Settlement Agreement with the Department. Pursuant to the agreement, the Appellant received a forty-five (45) day suspension without pay, and entered a rehabilitation facility at Bournewood Hospital.
Under the terms of the agreement, the Appellant agreed to submit to random drug testing for a period of thirty-six (36) months after returning to full-time duty. The Appellant also agreed to disciplinary action if she failed to meet all established standards of conduct and job performance, including testing positive for illegal drugs at anytime.
The Appellant returned to full-time duty in January 1997. The Appellant passed a series of 10 random urine tests from January 22, 1997 to January 1, 2000. The Appellant also tested clean on annual hair tests conducted in January 1999 and December 1999. In January 1998, the Appellant sustained a head injury after falling from a second story window. The injury caused the Appellant to suffer from both long-term and short-term memory loss.
While working a paid detail at the Pine Street Inn on October 22, 2000, the Appellant slipped and fell. The Appellant suffered a fractured tailbone, and was prescribed Motrin and Percocet. The Appellant was initially instructed to take one Percocet up to every six hours for pain, and on a follow-up visit on November 14, 2000, the instructions were modified to one or two Percocet tablets at bedtime as needed for pain. As a result of taking the Percocet, the Appellant suffered drowsiness and dizziness.
Shortly after this injury, the Appellant also contracted a Flu-like illness. This condition went untreated initially and developed into pneumonia.
In November 2000, the Appellant agreed to look after her sister’s two cats, while her sister visited her father in North Carolina. The Appellant’s sister, Cheryl Jacobs, is a smoker. On or about November 21, 2000,while at her sister’s apartment performing pet care, the Appellant noticed an open box of about 15 Newport cigarettes. The Appellant began to smoke the cigarettes at the rate of 3 or 4 a day. She noticed no ill or unusual effects. The Appellant had smoked all of the cigarettes by the time her sister returned from her trip. At the time, the Appellant was still suffering from flu-like symptoms and a severe cough from her untreated pneumonia. In addition, the Appellant was still taking the Percocet that had been prescribed to her for the pain. The Appellant testified that the combination of illness and medication deadened her senses of smell and taste.
When Jacobs returned in December 2000, she asked the Appellant about the box of cigarettes. When the Appellant replied that she had smoked them all, Jacobs said that each cigarette contained a small amount of cocaine. Jacobs, an individual with an abuse history, preferred this method of ingesting cocaine, especially since it concealed her relapse from her family and friends.
The Appellant states that she did not inform anyone about the cocaine-laced cigarettes. On December 27, 2000, toxicology testing revealed positive levels of cocaine in the Appellant. On January 9, 2001, the Department placed the Appellant on administrative leave without pay pending further action. When she spoke with the Department’s Medical Review Officer, Dr. Benjamin Hoffman, on January 9 and 10, 2001, the Appellant informed him that she had used no drugs except for the Percocet.
As a result of the December 27, 2000 positive cocaine test result, the Appellant voluntarily submitted to a second Hair Analysis Drug Test (Safety- Net-Test) on January 12, 2001. This test also confirmed the positive levels of cocaine.
On June 15 , 2001, in a matter of arbitration, Arbitrator Tammy Byrnie ruled that where a Department employee has an initial positive toxicology test result and enters into a settlement agreement with the Department – identical to the Settlement Agreement signed by the Appellant – that Department employee is deemed to have suffered a second offense when the employee tests positive for illicit drugs following the 36- month random testing period provided for in the settlement agreement and subjects himself to termination under Department Rule 111.
In this case, Arbitrator Byrnie further ruled that a four-year gap between two positive tests is insufficient to mitigate against a Department employee’s discharge. Edward Callahan was the Director of Human Resources for the Department from 1998-2001. He testified that in all instances where an officer has tested positive on two separate occasions, the Department has terminated the officer.
On January 30, 2001, the Department notified the Appellant that due to her January 12, 2001 positive test result it would be instituting disciplinary proceedings against her. The Department charged the Appellant with eight (8) violations of the Department’s Rules and Procedures. The specifications for those violations are as follows:
On December 27, 2000, Officer Deborah Anderson submitted to toxicology testing which revealed positive levels of cocaine. Such conduct is in violation of Rule 102, § 3(Conduct of Department Personnel).
That on December 27, 2000, Officer Deborah Anderson submitted to toxicology testing which revealed positive levels of cocaine. Such conduct is in violation of Rule 102, §35 (Conformance to Laws).
That on December 27, 2000, Officer Deborah Anderson submitted to toxicology testing which revealed positive levels of cocaine. Such behavior constitutes conduct which violates Rule 1 11 (Substance Abuse Policy).
That on November 18, 1996, Officer Deborah Anderson entered into a Settlement Agreement with the Boston Police Department, whereby she agreed to submit to random drug testing for a period of thirty six (36) months and agreed that disciplinary action would be taken against him (sic) should he (sic) again test positive for illegal drugs at any time. Officer Anderson did test positive for cocaine following drug testing on December 27, 2000. Such conduct is in violation of the Settlement Agreement executed on November 18, l996.
That on January I2, 2001, Officer Deborah Anderson submitted to toxicology testing which revealed positive levels of cocaine. Such conduct is in violation of Rule 102, § 3 (Conduct of Department Personnel).
That on January 12, 2001, Officer Deborah Anderson submitted to toxicology testing which revealed positive levels of cocaine. Such conduct is in violation of Rule 102, §35 (Conformance to Laws).
That on January 12, 2001, Officer Deborah Anderson submitted to toxicology testing which revealed positive levels of cocaine. Such behavior constitutes conduct which violates Rule 111 (Substance Abuse Policy).
That on November 18, 1996, Officer Deborah Anderson entered into a Settlement Agreement with the Boston Police Department, whereby she agreed to submit to random drug testing for a period of thirty six (36) months and agreed that disciplinary action would be taken against him (sic) should he (sic) again test positive for illegal drugs at any time. Officer Anderson did test positive for cocaine following drug testing on January 12, 2001. Such conduct is in violation of the Settlement Agreement executed on November 18, 1996.
At a March 15, 2001 trial board hearing, Superintendent Florastine Creed issued a ruling sustaining the charges against the Appellant. On April 10, 2001 the Appellant was terminated from her position as a Boston Police Officer. The Appellant filed a timely appeal of that termination with the Commission on April 23, 2001.
The role of the Civil Service Commission is to determine “whether the appointing authority has sustained its burden of proving that there was reasonable justification for the action taken by the appointing authority.” An action is “justified” when it is done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind; guided by common sense and by correct rules of law.”
The Commission determines justification for discipline by inquiring, “whether the employee has been guilty of substantial misconduct by impairing the efficiency of public service.” The Appointing Authority’s burden of proof is one of a preponderance of the evidence, which is satisfied “if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.
In reviewing an appeal under G.L. c. 31, §43, if the Commission finds by a preponderance of the evidence that there was just cause for an action taken against an Appellant, the Commission shall affirm the action of the Appointing Authority. The issue for the Commission is “not whether it would have acted as the appointing authority had acted, but whether, on the facts found by the commission, there was reasonable justification for the action taken by the appointing authority in the circumstances found by the commission to have existed when the appointing authority made its decision.”
The Commission is also mindful of the standard of conduct expected of police officers. “An officer of the law carries the burden of being expected to comport himself or herself in an exemplary fashion.” “[P]olice officers voluntarily undertake to adhere to a higher standard of conduct than that imposed on ordinary citizens.” Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for, rather than public distrust of, law enforcement personnel. They are required to do more than refrain from indictable conduct. Police officers are not drafted into public service; rather, they compete for their positions. In accepting employment by the public, they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities.
In this case, the Department Specifications I through IV charged Appellant with testing positive for cocaine on a December 27, 2000 toxicology test and the Department Specifications V through VIII charged her with testing positive for cocaine on a January 12, 2001 toxicology test. The Department sustained all eight of the Specifications against the Appellant at an internal disciplinary hearing on March 15, 2001 for two counts of violating Department Rule 102, § 3 (Conduct of Department Personnel), two counts of violating Department Rule 102, § 35 (Conformance to Laws), two counts of violating Department Rule 1 l I (Substance Abuse Policy) and two counts of violating the November 18, 1996 Settlement Agreement the Appellant entered into with the Department.
At the hearing, the Department submitted evidence in the form of the November 18, 1996 Settlement Agreement and the Psychemedics Corporation Test Result Support Documents, which showed by a preponderance of the evidence that the Appellant had violated Department rules and the Settlement Agreement. The documents established that Appellant tested positive for cocaine use when she submitted to her annual hair analysis drug test on December 27, 2000, and again when she submitted to the Safety Net test on January 12, 2001. Indeed, Appellant did not deny that she consumed cocaine prior to her positive toxicology tests. Rather, she contended unpersuasively that she should not have been held liable for violations of the Department rules and the Settlement Agreement because her consumption was inadvertent.
It is the function of the agency hearing the matter to determine what degree of credibility should be attached to a witness’s testimony.
The hearing officer must provide an analysis as to how credibility is proportioned amongst Witnesses.
The Appellant’s testimony – that she did not experience a “high” because she was taking other medications -was unconvincing. It is not reasonable to believe that given her prior drug abuse history, the Appellant was unable to recognize the smell, taste, and effects of cocaine: especially if the cocaine was ingested repeatedly over the course of a two (2) week period – regardless of any concurrent medication use. The Appellant was specifically instructed in her follow-up visit to the doctor on November 14, 2000 that she should only be taking Percocet at night as needed for pain, so any concurrent medication use should have been minimal. Furthermore, the Commission is on administrative notice that there is no indication in any published documents that Percocet interferes with sensory perceptions.
More significantly, although she was subject to drug testing, the Appellant never alerted anyone that she had inadvertently been exposed to illicit drugs. The Appellant did not alert her employer although she had allegedly smoked the cocaine laced cigarettes repeatedly from November 21 to December 5, 2000. In her own words, the Appellant acknowledged that by smoking the “laced” cigarettes, she had consumed drugs. She was on notice from her 1996 Settlement Agreement with the Department that any positive drug test results would lead to the termination of her employment. She therefore had every reason to document and report any exposure that could yield a positive drug test result and place her future employment in jeopardy. This is what a reasonable person would have done immediately upon learning of the conditions of the cigarettes. The Appellant is not credible. Her tale is one of fabrication, in order to excuse the drug use and avoid termination.
Finally, to the extent that the Appellant may argue that her December 27, 2000 positive toxicology test should be treated as her first offense under Department Rule 111, the Commission found this argument to be without merit. As held in the Matter of Arbitration between The Boston Police Patrolmen’s Association and the City of Boston, Case No. 16-1413 (June 15 , 2001), a Department employee’s positive toxicology test is treated as his or her second offense under Rule 111 where such employee had previously tested positive for illicit drugs and entered into a settlement agreement with the Department calling for a period of random drug testing. It is of no consequence that the random drug testing period had expired at the time of the employee’s second positive toxicology test. Thus, the fact that the Appellant’s random drug testing period from her November 18, 2006 Settlement Agreement had expired prior to December 27, 2000 was not relevant to the determination that she was to be treated as having a second offense under Department Rule 111 and therefore was subject to termination. The Department has consistently applied this analysis to subsequent drug offenses, as arbitration case number 16-1413 demonstrates. The Appellant Was treated consistently as were other officers who have repeatedly tested positive for illegal drug use.
The Commission found that the Department had reasonable justification for finding that Appellant’s positive toxicology tests on December 27, 2000 and January 12, 2001 violated Rule 102, § 3 (Conduct of Department Personnel), Rule 102, § 35 (Conformance to Laws), and Rule 111 (Substance Abuse Policy) of the Rules and Procedures of the Boston Police Department as well as the November 18, 1996 Settlement Agreement entered into between Appellant and the Department.
The Department met its burden and proved by a preponderance of the evidence that there was just cause to terminate the Appellant. Moreover, they found that there was no evidence of inappropriate motivations or objectives that would warrant the Commission modifying the discipline imposed upon her.
For all of the above reasons, the Appellant’s appeal was dismissed.